Washington v. Davis

By a vote of 7-2, the Supreme Court reversed the court of appeals. Writing for the Court, Justice White clearly indicated that the so-called "disproportionate impact" test developed in Griggs did not apply here. While Griggs interpreted Title VII of the 1964 Civil Rights Act, the same standards did not apply to the applicable law in this case--the Due Process Clause of the Fifth Amendment:

We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today. The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups . . . But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially discriminatory disproportionate impact.

Although the Court stated that a showing of discriminatory intent was necessary to make out a claim under the Constitution, it was less clear about what sort of showing might pass the test. Justice White indicated that a discriminatory purpose might be inferred from all the facts--including the disproportionate impact of tests or other factors on racial minorities--relevant to a particular case of alleged employment discrimination. But as Justice Brennan pointed out in his dissenting opinion, discriminatory purpose cannot always be distinguished from discriminatory impact.

When the Court revisited the issue in Personnel Administrator v. Feeney (1979), this test was clarified: if the potential discriminatory effects of an employment practice were foreseeable and the employer carried them out anyway, this action constitutes discriminatory intent. The burden of proof--and it is a heavy one--was now shifted to the employee, who must show that the employer should have known that a certain practice would negatively impact minority employees.